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Date: 12-14-2020

Case Style:

John Michael Mullis v. The State of Texas

Case Number: 01-19-00570-CM

Judge: Russell Lloyd

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: The Honorable Kim K Ogg
Andrew Fletcher

Defendant's Attorney:

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Little Rock, AR - Criminal defense atty represented defendant John Michael Mullis with a manslaughter with a deadly weapon charge.

On June 3, 2016, the complainant, Frederick Curry, exited a Metro bus at the
designated bus stop on the northbound side of West Montgomery Road in Harris
County, Texas. The road consists of two northbound lanes and a turn-only lane, and
two southbound lanes. The lanes are divided by a concrete median.
Curry exited the bus through the rear doors, turned right, traveled around the
back of the bus, and stepped into the first lane of northbound traffic to get across to
the median and then cross the southbound lanes. As Curry looked to his left for
oncoming traffic, he was struck by appellant’s tow truck, which had crossed from
the southbound lanes and was driving past the bus against the flow of northbound
traffic. Appellant was towing a vehicle at the time and taking a shortcut through the
northbound lanes to enter the back entrance of his towing company to avoid having
to pass the lot and make a U-turn at the next break in the median.
Grace Epko, the bus driver, testified that she was watching Curry in her left
mirror before pulling away from the stop when she saw a tow truck traveling the
wrong direction. Epko testified that Curry was looking in the direction of oncoming
cars traveling northbound before attempting to cross the road when the tow truck
struck him. The video from the bus showing the collision was admitted into
Harris County Sheriff’s Deputy David Pearson inspected appellant’s tow
truck following the collision and performed a crash reconstruction. He testified that
the damage to appellant’s tow truck was consistent with being involved in an autopedestrian crash. Deputy Pearson testified that, based on his calculations,
appellant’s tow truck weighed 10,340 pounds at the time of impact. He testified that
the truck skidded ninety feet before striking Curry. Deputy Pearson estimated that
the truck was traveling thirty-six miles per hour at the time it began skidding and
twenty-eight to twenty-nine miles per hour at the time of impact. On crossexamination, Deputy Pearson testified that the Texas Transportation Code requires
a pedestrian who is not crossing the street at a crosswalk to yield the right-of-way to
legally approaching vehicles. On re-direct examination, he clarified that the
requirement that a pedestrian who is not crossing at an intersection or crosswalk
yield to approaching vehicles applies only to legally approaching vehicles. He
testified that driving on the left side of the road is not a legal maneuver, unless
directed by a police officer or a traffic control device, which was not the case here.
Deputy Pearson testified that if appellant had reached the back entrance legally by
making a U-turn, he would have been required to travel an additional 863 feet, which
would have taken approximately 27 more seconds.
Jonathan Cruz, appellant’s nephew, was a passenger in the tow truck when
appellant hit Curry. He was helping appellant with towing jobs while learning the
business. Cruz testified that appellant’s tow truck had difficulty making U-turns and
that it required blocking a couple of lanes of traffic in order to execute the turn. Cruz
testified that the tow truck company paid its drivers for every six tows, and that the
drivers rushed to get as many cars towed as possible in a day. He testified that it
was common practice for the tow truck drivers to drive southbound in the
northbound lanes to reach the company’s back entrance because it was safer than
making a U-turn, which required blocking traffic.
At the conclusion of trial, the jury found appellant guilty of manslaughter.
The trial court assessed his punishment at three years’ confinement.1
This appeal
Sufficiency of the Evidence
In his sole point of error, appellant contends that the evidence is insufficient
to support his conviction for manslaughter. He argues that his decision to drive in
the wrong direction did not constitute recklessness because he had determined that
1 The punishment range for manslaughter, a second-degree felony, is confinement for
not more than twenty years or less than two years and a fine not to exceed $10,000.
See TEX. PENAL CODE §§ 12.33 (establishing punishment range for second-degree
felony), 19.04(b) (establishing manslaughter as second-degree felony).
driving into the oncoming traffic lane was safer than making a U-turn, and he acted
in accordance with the regular conduct of other tow truck drivers.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of the evidence in the
light most favorable to the jury’s verdict to determine whether any “rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 318–19; Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007). Our role is that of a due process safeguard, and we consider only
whether the factfinder reached a rational decision. See Arroyo v. State, 559 S.W.3d
484, 487 (Tex. Crim. App. 2018); see also Morgan v. State, 501 S.W.3d 84, 89 (Tex.
Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to
guarding against the rare occurrence when a fact finder does not act rationally”)
(quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)).
In a sufficiency review, we must consider the “combined and cumulative
force” of the circumstances pointing toward guilt. Clayton v, State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor” and “the standard of review on appeal
is the same for both direct and circumstantial evidence cases.” Kuciemba v. State,
310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (quoting Guevara v. State, 152 S.W.3d
45, 49 (Tex. Crim. App. 2004)). The trier of fact is the sole judge of the weight and
credibility of the evidence. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim.
App. 2018); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when
performing an evidentiary sufficiency review, we may not re-evaluate the weight
and credibility of the evidence and substitute our judgment for that of the factfinder.
Arroyo, 559 S.W.3d at 487; see Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012). Instead, we must defer to the weight determinations of the
factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v.
State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).
B. Applicable Law
A person commits the offense of manslaughter “if he recklessly causes the
death of an individual.” TEX. PENAL CODE § 19.04(a). “A person acts recklessly, or
is reckless, with respect to circumstances surrounding his conduct or the result of his
conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.” Id. § 6.03(c).
“The risk must be of such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would exercise under all
the circumstances as viewed from the actor’s standpoint.” Id.
Manslaughter is a “result of conduct crime,” one in which recklessness must
go to the conduct causing the death. See Schroeder v. State, 123 S.W.3d 398, 400–
01 (Tex. Crim. App. 2003); Gilbert v. State, 196 S.W.3d 163, 166 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d). Recklessness requires the defendant to actually
foresee the risk involved and to consciously decide to ignore it. Williams, 235
S.W.3d at 751. “The issue is not one of theoretical possibility, but one of whether,
given all the circumstances, it is reasonable to infer that the particular individual on
trial was in fact aware of the risk.” Dillon v. State, 574 S.W.2d 92, 95 (Tex. Crim.
App. 1978); see Griffith v. State, 315 S.W.3d 648, 652 (Tex. App.—Eastland 2010,
pet. ref’d). The jury’s determination of a culpable mental state is usually grounded
upon inferences drawn from the attendant circumstances and may be inferred from
the acts, words, and conduct of the accused. See Robledo v. State, 126 S.W.3d 150,
155 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Lane v. State, 763 S.W.2d
785, 787 (Tex. Crim. App. 1989) and Dues v. State, 634 S.W.2d 304, 305 (Tex.
Crim. App. 1982)).
When recklessness is an element of an offense, the indictment must allege,
with reasonable certainty, the act or acts relied upon to constitute recklessness. See
TEX. CODE CRIM. PROC. art. 21.15. The indictment in this case charged appellant
with manslaughter, alleging that appellant “did then and there unlawfully, recklessly
cause the death of Frederick Curry, hereafter styled the complainant, by driving the
wrong way and striking the complainant with his motor vehicle.”
C. Analysis
It is undisputed that appellant caused Curry’s death by driving in the wrong
direction in his tow truck. The question is whether the evidence at trial was sufficient
to support a finding beyond a reasonable doubt that appellant recklessly caused
Curry’s death by driving as alleged in the indictment.
Viewed in the light most favorable to the verdict, the evidence at trial showed
that (1) it was appellant’s “usual practice” to drive southbound into the northbound
lanes to avoid having to make a U-turn; (2) the tow company’s drivers commonly
drove the wrong way to access the company’s back entrance; (3) the bus stop where
appellant exited the bus was marked in front of the tow company’s front entrance;
(4) the bus stop was part of a regular route and busses stopped there at thirty-minute
intervals; (5) appellant drove his tow truck into the northbound lanes after Curry’s
bus had stopped and Curry had exited the bus; (6) appellant fatally struck Curry
while driving his tow truck southbound in the northbound lanes; (7) the southbound
lanes had no debris or obstacles that would have prevented appellant from continuing
south to make a U-turn; and (8) appellant would have had to travel an additional 863
feet, which would have taken approximately 27 more seconds, to make a U-turn and
legally reach the back entrance. The jury also heard evidence that the tow truck
company paid its drivers, including appellant, only after they completed six tows,
and that the drivers rushed to get as many cars towed as possible in a day. From this
evidence, the jury could have reasonably inferred that appellant (1) saw the bus stop
and the stationary bus as he crossed into the northbound lanes; (2) was aware of the
likelihood that the bus was dropping, or had dropped, off pedestrians; (3) decided to
drive in the wrong direction despite being aware of the risk created by his driving
southbound in the northbound lanes; and (4) was driving illegally into oncoming
traffic at the moment he struck Curry.
Recklessness can be applied generally to the act of driving. Zorn v. State, 315
S.W.3d 616, 620 (Tex. App.—Tyler 2010, no pet.); see Porter v. State, 969 S.W.2d
60, 63 (Tex. App.—Austin 1998, pet. ref’d). “[A]t the heart of reckless conduct is
conscious disregard of the risk created by the actor’s conduct.” Williams, 235
S.W.3d at 751 (quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App.
1975)). The reckless person neither desires that the risk occur nor is he reasonably
certain that it will occur; he does, however, perceive it. Stepherson v. State, 523
S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Dillon,
574 S.W.2d at 96); see Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App.—Austin
1997, writ ref’d) (“A defendant need not be aware of the specific risk of another’s
death in order to commit manslaughter.”); see also Leblanc v. State, No. 01-10-
00251-CR, 2011 WL 3556952, at *5 (Tex. App.—Houston [1st Dist.] Aug. 11, 2011,
no pet.) (mem. op., not designated for publication). A number of courts have found
sufficient evidence of recklessness where the defendant was illegally driving in or
around the wrong lane or in the wrong direction. See, e.g., Trepanier, 940 S.W.2d
at 830 (finding sufficient evidence of recklessness where driver moved through two
lanes of heavy traffic at inappropriate speed and fatally struck bicyclist while
attempting to pass delivery truck on shoulder of road); Banister v. State, 761 S.W.2d
849, 850 (Tex. App.—Beaumont 1988, no pet.) (holding that recklessness was
shown where truck driver put truck in reverse during heavy fog on highway and
struck driver proceeding legally in same lane); see also Padon v. State, No. 03-17-
00695-CR, 2019 WL 4561392, at *6 (Tex. App.—Austin Sept. 20, 2019, pet. ref’d)
(mem. op., not designated for publication) (finding that several acts by intoxicated
defendant revealed conscious disregard for risk to others, including evidence
showing defendant did not stay in her lane of traffic, drove fully in lane of oncoming
traffic, and drove without headlights on blind curve); Patton v. State, No. 05-14-
01073-CR, 2016 WL 97540, at *4 (Tex. App.—Dallas Jan. 6, 2016, pet. ref’d)
(mem. op., not designated for publication) (concluding evidence of recklessness was
sufficient where defendant failed to maintain single lane of traffic, drove toward
lights of oncoming vehicle, veered out of his lane, and continually drove into
opposing lane of traffic, eventually causing fatal head-on collision with another
vehicle); Miller v. State, No. 03-07-00527-CR, 2010 WL 140390, at *6 (Tex. App.—
Austin Jan. 13, 2010, pet. ref’d) (mem. op., not designated for publication) (finding
sufficient evidence of recklessness where driver approached lane of stopped traffic
behind school bus with lights flashing, passed vehicles on right on narrow improved
shoulder of highway, drove at excessive speed without braking or reducing speed,
and struck child causing her death).
In an evidentiary sufficiency review, our role is not to re-evaluate the weight
and credibility of the evidence and substitute our judgment for that of the factfinder;
rather, we must defer to the weight determinations of the factfinder. See Arroyo,
559 S.W.3d at 487; Montgomery, 369 S.W.3d at 192. From the combined and
cumulative force of all the evidence presented in this case, and the reasonable
inferences from it, the jury could have found beyond a reasonable doubt that
appellant recklessly caused Curry’s death by driving in the wrong direction as
alleged in the indictment. See Zuniga, 551 S.W.3d at 733 (confirming that
“circumstantial evidence alone may be sufficient to uphold a conviction so long as
the cumulative force of all the incriminating circumstances is sufficient to support
the conviction”); Nowlin, 473 S.W.3d at 317 (“[W]here the inferences made by the
factfinder are reasonable in light of ‘the cumulative force of all the evidence when
considered in the light most favorable to the verdict,’ the conviction will be
upheld[.]”). The evidence is sufficient to support appellant’s conviction for
manslaughter. Accordingly, we overrule appellant’s sole point of error

Outcome: We affirm the trial court’s judgment

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